IN THE MATTER OF B.F.

2016 Mass. App. Div. 18

December 7, 2015 - February 24, 2016

Appellate Division Western District

Court Below: District Court, Greenfield Division

Present: Hadley, P.J., Despotopulos & Poehler, JJ.

Marilyn J. Schmidt for the petitioner.

Nadell Hill for the respondent.

POEHLER, J. Two central issues are raised in this case. The first question to be decided is whether the failure to discharge a patient hospitalized pursuant to G.L. c. 123, § 12(a) and (b), at the conclusion of the three-day period where the patient did not remain voluntarily and the hospital did not timely petition for commitment amounts to an abuse or misuse of the admission procedure. The second,
and perhaps more difficult, question is if an abuse or misuse is found, what is the legal consequence.

The facts are undisputed. On Sunday, July 19, 2015, B.F. was temporarily involuntarily committed to the Baystate Franklin Medical Center Mental Health Unit (facility) pursuant to G.L. c. 123, § 12(a) [Note 1] and (b), [Note 2] for a three-day period. Pursuant to G.L. c. 123, § 12(d), [Note 3] B.F. had to be discharged at the end of the three-day period unless the superintendent of the facility applied for a further commitment pursuant to G.L. c. 123, §§ 7 and 8, or B.F. remained voluntarily. B.F. did not sign a voluntary admission, and the facility missed the July 22, 2015, deadline for filing the §§ 7 and 8 petition.

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When, on July 23, 2015, the facility realized its error, rather than discharging B.F., a designated physician at the facility filed a second application for and authorization of admission under § 12(a) and (b) for another three-day period. On that same day, just after 4:30 P.M., the facility filed, by facsimile transmission, a petition for commitment under §§ 7 and 8 with the Greenfield District Court.

On July 27, 2015, B.F. filed for an emergency hearing pursuant to G.L. c. 123, § 12(b), [Note 4] alleging
that her second three-day admission was the result of an abuse or misuse of the provisions of the statute and requesting immediate discharge. A hearing was held before the Greenfield District Court the next day, after which the request for discharge was denied. B.F. then filed a motion to dismiss the §§ 7 and 8 petition on the ground that the court lacked jurisdiction because the facility had failed to discharge B.F. pursuant to § 12(d) after the expiration of the initial three-day period. That motion was denied, and after a hearing conducted on July 29, 2015, B.F. was committed for a six-month period.

The order of commitment entered on July 29, 2015, has now expired. Therefore, the case is moot. However, because the issues presented here are capable of repetition and involve a statute which permits the Commonwealth to restrict an individuals liberty [and thus] is a matter of public importance, Hashimi v. Kalil, 388 Mass. 607 , 609 (1983), we exercise our discretion and decide the matter.

It is B.F.s position that pursuant to § 12(d), the facility was required to discharge her at 4:30 P.M. on July 22, 2015, after it failed to file a petition for commitment under §§ 7 and 8 by then and that its failure to discharge her, and its subsequent use of a second temporary admission pursuant to § 12(a) and (b), was a per se abuse or misuse of the statute, which deprived the District Court of jurisdiction to hear the §§ 7 and 8 petition.

The hospital concedes that it missed the three-day filing deadline, but it argues that the consequence of that error should not be dismissal of the later commitment, especially where the hearing on the commitment under §§ 7 and 8 was commenced within five business days of when the petition should have been filed. It argues that B.F. was not deprived of her liberty any longer than she would have been had the petition for commitment been timely filed.

Section 12 of G.L. c. 123, sets up a procedure for the emergency hospitalization and commitment of mentally ill persons. Section 12(a) provides for temporary emergency restraint and application for hospitalization of a mentally ill individual based solely on an examination by a qualified professional
who has reason to believe that failure to hospitalize such person would create a likelihood of serious
harm by reason of mental illness. Section 12(b) provides that following the § 12(a) application, a designated physician may admit an individual based on a determination that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness.

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Section 12(d) provides that the hospitalization is limited to three days at the end of which the person shall be discharged unless he or she agrees to remain voluntarily or the facility petitions the District Court for a further commitment. If the facility petitions for further commitment, G.L. c. 123, § 7(c), mandates that a hearing on the petition be commenced within five business days of the filing thereof unless a delay is requested by the patient. Section 7(c) also provides that the time periods shall be calculated pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure. Section 12(b) provides for an emergency hearing before the District Court where an abuse or misuse of the admission process is alleged.

Section 12(d) states that unless an individual remains voluntarily, he or she shall be discharged if the facility fails to petition for commitment within three days. The language is plain and unambiguous. In construing a statute, words are to be accorded their ordinary meaning and approved usage. The word shall is ordinarily interpreted as having a mandatory or imperative obligation. In addition, a general rule exists that direction to public officers for the protection of rights are mandatory (citations omitted). Hashimi, supra at 609-610. The timely filing of a petition pursuant to §§ 7 and 8 is the act that authorizes the continued restraint of the patient. See G.L. c. 123, § 6. Here, the facility violated § 12(d) by failing to discharge B.F. at 4:30 P.M. on July 22, 2015.

The hospital argues that § 12 does not mandate any specific consequence of a violation and that B.F. was not prejudiced by the one-day delay in filing the petition as the commitment hearing was still held within five days of when the petition should have been filed.

The procedural safeguards contained in §§ 12 and 7 protect persons who, by virtue of their temporary involuntary commitment, are experiencing a massive curtailment of their liberty. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 , 784 (2008), quoting Commonwealth v. Nassar, 380 Mass. 908 , 917 (1980). To that end, the procedural requirements of these statutes have been strictly construed. In Hashimi, supra, the Court held that a commitment petition was properly dismissed where the hearing was commenced fifteen days after the filing in violation of the statutory requirement that it commence within fourteen days of the filing. Id. at 609-610. See G.L. c. 123, § 7(c). At issue in Magrini, supra, was the language in § 12(b) stating that the district court shall hold [an emergency] hearing upon request. The District Court had denied the respondents request for such a hearing. The Supreme Judicial Court held that unless a request for an emergency hearing on its face is patently frivolous, the obligation to hold an emergency hearing is mandatory. Id. at 785. In Acting Supt. of Bournewood
Hosp. v. Baker, 431 Mass. 101 (2000), the Court similarly strictly construed the provisions of G.L.
c. 123, §§ 7(a), 8(a), and 11, so as to prohibit the filing of a petition for commitment by a superintendent of a facility against a patient already hospitalized on a conditional voluntary basis who has not given notice of intent to leave. Id. at 104-105.

Hashimi holds that where G.L. c. 123, § 7(c), states that a commitment hearing shall be commenced within fourteen days of the filing of a petition, a hearing commenced on the fifteenth day is in violation of the statute and deprives the District Court of jurisdiction. Id. at 609-610. The analysis here is no different and is controlled by the holding in Hashimi. Where the statute says the patient shall be discharged, G.L. c. 123, § 12(d), there is no legal authority to hold the patient without filing a petition for commitment or without the patients consent. Therefore, holding the patient beyond the three days in the absence of consent or filing of a petition for commitment

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is an abuse or misuse of the admission procedure. While the statutory scheme does not prohibit the filing of a second § 12(a) and (b) application, see Magrini, supra at 784 n.14, the facility would have to discharge B.F. first. [Note 5] Because it did not do so, the District Court was without jurisdiction to hear the §§ 7 and 8 petition.

The decisions of the trial court denying the motion for immediate discharge pursuant to G.L.
c. 123, § 12(b) and (d), and denying the motion to dismiss the petition for commitment pursuant to G.L.
c. 123, §§ 7 and 8, are reversed. The order of commitment is vacated.

FOOTNOTES

[Note 1] General Laws c. 123, § 12(a) provides in pertinent part, Any physician who is licensed pursuant to section 2 of chapter 112 . . . who, after examining a person, has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness may restrain or authorize the restraint of such person and apply for the hospitalization of such person for a 3 day period at a public facility . . . .

[Note 2] General Laws c. 123, § 12(b) provides in part, Only if the application for hospitalization under the provisions of this section is made by a physician specifically designated to have the authority to admit to a facility in accordance with the regulations of the department, shall such person be admitted to the facility immediately after his reception. If the application is made by someone other than a designated physician, such person shall be given a psychiatric examination by a designated physician immediately after his reception at such facility. If the physician determines that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness he may admit such person to the facility for care and treatment.

[Note 3] General Laws c. 123, § 12(d) provides, A person shall be discharged at the end of the three day period unless the superintendent applies for a commitment under the provisions of sections seven and eight of this chapter or the person remains on a voluntary status.

[Note 4] General Laws c. 123, § 12(b) provides in part, Any person admitted under the provisions of this subsection, who has reason to believe that such admission is the result of an abuse or misuse of the provisions of this subsection, may request, or request through counsel an emergency hearing in the district court in whose jurisdiction the facility is located, and unless a delay is requested by the person or through counsel, the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day.

[Note 5] While the statute does not prohibit the filing of serial § 12(a) and (b) applications, such may be the basis of an emergency motion for misuse or abuse of the admissions procedure under § 12(b). See Magrini, supra at 784.